01996915
10-12-2001
Darryle Brooks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.
Darryle Brooks v. United States Postal Service
01996915
October 12, 2001
.
Darryle Brooks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Mid-Atlantic Area),
Agency.
Appeal No. 01996915
Agency No. 4D-270-1094-95
Hearing No. 140-96-8059X
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD
(Damages)) concerning the agency's refusal to award compensatory damages.
A Commission Administrative Judge (AJ), in a recommended decision,
found that the agency violated Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., when it discriminated
against complainant on the bases of race and retaliation, but that the
agency did not discriminate against complainant based on sex. Complainant
alleged that he was discriminated against, when he was notified by the
Postmaster that he would be moved from his bid job at the Main Office to
another station/branch (North Station) within the Winston-Salem, North
Carolina delivery area. The agency adopted the recommended decision of
the AJ (FAD (Merits)) and retained jurisdiction over relief questions,
including compensatory damages.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether complainant was entitled to an award of
compensatory damages.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Distribution and Window Clerk, PS-05, in Winston-Salem,
North Carolina. In February 1994, complainant was the successful bidder
for the position at the Main Office. On December 30, 1994, the Postmaster
informed complainant that, effective January 7, 1995, complainant would
be reassigned to the North Station on a temporary basis. Believing he
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint on June 30, 1995.
After his reassignment to the North Station, complainant made several
attempts to return to his job assignment at the Main Office. However,
by memorandum dated July 28, 1995, the Postmaster informed complainant
that his position would be permanently at North Station. By letter
dated July 31, 1995, complainant informed the Postmaster that he would
not accept the position. Complainant became an unassigned regular,
until he successfully bid on a Window Clerk position at the Manor Station.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC AJ. Following a hearing, the AJ issued a recommended
decision finding complainant had been discriminated against, as previously
discussed. As relief, inter alia, the AJ recommended that the agency
determine: (1) whether complainant was entitled to out-of-schedule pay
for the time period from January 4, 1995, when the complainant first
reported to North Station, until he bid out of that job assignment; (2)
whether complainant lost any earnings as a result of his reassignment
and reimburse him for any lost earnings; (3) with the complainant's
cooperation, whether the complainant was entitled to compensatory
damages for the discrimination; and (4) the payment to complainant of a
reasonable amount of attorney fees. Subsequently, the AJ's recommended
finding of discrimination was adopted by the agency in its FAD (Merits).
The agency also essentially adopted the AJ's recommended relief in its
FAD (Merits).
The agency subsequently, in a separate decision, issued its FAD (Damages),
finding that complainant was not entitled to any compensatory damages.
The FAD (Damages) specifically found that complainant had not justified
Out-of-Schedule Pay, Lost Earnings-Pecuniary Damages, or Non-Pecuniary
Damages.<2> The FAD (Damages) found, with respect to Out-of-Schedule
Pay, that complainant conceded that he was not entitled to any such pay.
With respect to Lost Earnings, the FAD (Damages) found that the record
was devoid of any testimony or evidence to support the claim that
complainant was performing higher level duties, and that complainant's
own testimony indicated that to the extent duties were added to his
North Station job, they were Distribution/Window Clerk, PS-5 duties.
With respect to Non-Pecuniary Damages, the FAD (Damages) found that
the submission of notarized statements from complainant, his spouse,
father, and co-worker lacked the specificity to evaluate, establish,
and quantify a claim for damages. In addition, the FAD (Damages)
concluded that complainant's claims extended to conditions and/or
situations that occurred two to four years after the discrimination,
and after he received his relief of a voluntary reassignment.
It is the FAD (Damages), dated October 25, 1999, from which complainant
now appeals. Complainant indicated that the AJ awarded complainant
compensatory damages, and that the agency had not complied with the
order.<3>
This decision treats complainant's appeal as relating to the compensatory
damages as ordered by the AJ. For some unexplained reason, the FAD
(Damages) treated the Out-of- Schedule Pay and Lost Earnings�Pecuniary
Damages as compensatory damages. The AJ directed relief on these matters
separate from compensatory damages. Accordingly, we do not think it
necessary to address the matters concerning Out-of-Schedule Pay and Lost
Earnings�Pecuniary Damages.<4> Non-Pecuniary Damages are compensatory
damages and will be addressed in this decision.
ANALYSIS AND FINDINGS
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. Pecuniary
losses are out-of-pocket expenses that are incurred as a result
of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
Past pecuniary losses are the pecuniary losses that are incurred prior
to the resolution of a complaint via a finding of discrimination,
an offer of full relief, or a voluntary settlement. Id. at 8-9.
Future pecuniary losses are losses that are likely to occur after
resolution of a complaint. Id. at 9. Complainant presented no evidence
of pecuniary losses.
Non-pecuniary losses are losses that are not subject to precise
quantification, including emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing,
injury to character and reputation, injury to credit standing, and loss
of health. The Commission notes that damage awards for emotional harm are
difficult to determine and that there are no definitive rules governing
the amount to be awarded in given cases. Non-pecuniary damages must be
limited to the sums necessary to compensate the injured party for actual
harm, even where the harm is intangible, see, Carter v. Duncan-Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1994), and should take into account the
severity of the harm and the length of time that the injured party has
suffered from the harm. Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, at 14. A proper award must
meet two goals: that it not be �monstrously excessive� standing alone,
and that it be consistent with awards made in similar cases. See Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
Complainant contends that as a result of the alleged discriminatory
action, he has suffered from chronic depression, anger, frustration,
insomnia and fear for several years under the supervision of
the Postmaster. His spouse, father, and co-worker confirm his
statement. Complainant has therefore sufficiently demonstrated a causal
relationship between the discrimination and his non-pecuniary damages.
Complainant also alleged aggravation of his pre-existing asthma and
high blood pressure. However, complainant has not submitted evidence
of medical visits and/or prescriptions or evidence from any health
care providers. Complainant further alleged adverse effects upon his
family life, including his wife, children, and parents. Complainant also
alleged that the discriminatory action caused him to be frequently absent
from church, social, and educational functions. Complainant provided
no evidence in the form of specific dates and/or events to show that
he was absent from such functions. Finally, complainant alleged that
embarrassment and fear kept him from therapy regarding the alleged
depression, anger, frustration, insomnia, and fear. While it appears the
conflict on complainant's job has been resolved we recognize that complete
elimination of his suffering may never be achieved, although it would
appear that the harshest of the suffering should have been ameliorated.
The agency was arbitrary in summarily concluding that complainant's
claims extending to conditions and/or situations that occurred two to
four years after the discrimination, and after he received his relief of
a voluntary reassignment, could not still result in damage to complainant.
A number of Commission decisions have awarded non-pecuniary compensatory
damages in cases which we compare to complainant's. Lawrence v. Postal
Service, EEOC Appeal No. 01952288 (April 18, 1996) ($3,000 in damages
where complainant presented primarily non-medical evidence that
she was irritable, experienced anxiety attacks, and was shunned by
her co-workers); White v. Department of Veteran's Affairs, EEOC No,
01950342 (June 13, 1997) ($5,000 awarded for emotional distress which
included depression, emotional fatigue, nightmares, and insomnia that
were related to hostile environment lasting approximately a year and a
half); Bensen v. Department of Agriculture, EEOC No. 01952854 (June 26,
1994) ($5,000 awarded complainant; his relatives and colleagues offered
testimony regarding embarrassment and humiliation complainant suffered
at work as a result of denial of promotional opportunities, suspension,
and other adverse actions); Rountree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995) ($8,000 in non-pecuniary
damages where complainant received a low performance appraisal and
was denied bonus pay because of race and reprisal, medical testimony
provided regarding complainant's emotional distress, but the majority of
complainant's emotional problems were caused by factors other than the
discrimination); Jones v. Department of Defense, EEOC Appeal No. 01973551
(April 14, 2000)($9,000 in non-pecuniary damages based on complainant's
testimony concerning interference with family and marital relations,
digestive problems, headaches, anxiety, sleeplessness, and exhaustion
resulting from agency's discrimination); Baptieste v. Air Force, EEOC
Appeal No. 01974616 (May 26, 2000) ($12,000 in non-pecuniary damages
based on complainant's and others' statements of emotional distress due
to agency's discriminatory termination, felt worthless and depressed,
negative attitude about herself and outside world, isolated from
coworkers, nausea and insomnia, intense feelings of anxiety, irritable,
had to declare bankruptcy); Portier v. Department of Army, EEOC Appeal
No. 01A05954 (February 28, 2001) ($12,000 in non-pecuniary compensatory
damages, major depression, emotional distress, and pain and suffering;
in addition to his own testimony, evidence from two doctors, his mother
and brother, three co-workers, as well as medical records and expense
sheets linking his emotional condition to the agency's discrimination).
Based on the foregoing evidence, the Commission finds that complainant is
entitled to non-pecuniary damages in the amount of $6,000. This amount
takes into account the severity and duration of the harm sustained by
complainant by the agency's actions and consideration of damage awards
reached in comparable cases. The Commission further notes that this
amount meets the goals of not being motivated by passion or prejudice,
not being �monstrously excessive� standing alone, and being consistent
with the amounts awarded in similar cases. See Cygnar, 865 F.2d at 848.
CONCLUSION
Based upon our review of the record, the decision of the Commission is
to MODIFY the FAD (Damages) and to award compensatory damages in the
amount of $6,000 for non-pecuniary damages. Accordingly, the agency
must comply with the following ORDER:
ORDER
1. Within thirty calendar days of the date that this decision becomes
final, the agency shall tender a check to complainant in the amount
of $6,000.00.
2. The agency is further directed to submit a report of compliance,
as provided in the statement below entitled �Implementation of the
Commission's Decision.� The report shall include documentation to verify
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 12, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Under the Commission's revised regulations, the AJ retains
jurisdiction over relief questions, including compensatory damages and
attorney's fees or costs. However, the AJ's decision was submitted by
the AJ on December 30, 1998. The FAD (Merits) was dated March 8, 1999.
The FAD (Damages) was dated October 25, 1999. The revised regulations
were, therefore, not in effect at the time of any of the decisions
relevant to this case.
2 The parties entered into a settlement agreement in July 1999, in
which the agency agreed to pay $10,650.99 in attorney fees.
3 Complainant filed a letter dated August 9, 1999, to the agency
indicating that no offer of settlement from the agency regarding
compensatory damages as ordered by the AJ had been received.
The Commission received its letter on September 9, 1999, along with
supporting documents. It is that letter, submitted prematurely to the
Commission, since it was received before the FAD (Damages) was issued,
that is being treated as the instant appeal.
4 Nevertheless, in reviewing complainant's affidavit, with respect to
Out-of-Schedule Pay, he conceded that he was not entitled to such pay.
Although he contended that he was entitled to lost earnings in an
amount which reflected the difference between PS-06 and PS-05 pay for
performing duties from January 4, 1995, through and including July 1,
1996, he provided no evidence to support that contention.